Gone-zales for Good

The political implications of the Fine letter are large. Clement would have no reason to grant Schumer et al. their wish for a special counsel as things stand. But a negative report from Fine would open an entirely new chapter. If the IG report finds indications of wrongdoing and the acting attorney general has ducked the issue, the political pressure to let a special counsel sort it out becomes immense. So it is that as a result of Democrats zeroing in on the person of the attorney general, Alberto Gonzales has gone from a position as bulwark against the appointment of a special counsel under the pressure of confirming a successor, to a position in which he poses the greatest risk of such an appointment as a consequence of the political pressure from an internal Justice Department investigation.

So Gonzales's departure may be timely after all. As to what comes next, indications are the White House understands that there has to be a litmus test for the nominee to succeed Gonzales: namely, no commitments in the confirmation process to appoint a special counsel (or to overturn the position the administration has taken on executive privilege to shield White House officials from scrutiny under oath in congressional hearings). Someone coming in fresh with this attitude is fairly well-positioned to maintain that he or she has no conflict and is perfectly capable of supervising any ongoing investigation into the former attorney general's conduct.

Bush needs someone more determined to defend this line than to be confirmed for the job. Then it becomes a question of whether Judiciary Committee Democrats really have the nerve to turn down a qualified nominee or whether they will worry about overplaying their hand. If they had spent more time making a general case about the inability of the Justice Department to investigate itself satisfactorily rather than focusing on Gonzales, they might be better positioned. To press for an independent counsel now might look merely opportunistic.
If Judiciary Committee Democrats do press the matter to the point of rejecting a qualified nominee, Bush can resort to a recess appointment. That gets him out of Dodge in January '09. It won't be pretty, but the last couple years of a two-term presidency generally aren't.

Contributing editor and Hoover Institution fellow Tod Lindberg is editor of Policy Review and author of The Political Teachings of Jesus (HarperCollins).